The coronavirus (COVID-19) pandemic has brought about a fast and widespread transition to remote hearings while participants cannot attend court or tribunal buildings.
We’ve been monitoring the changes, expanding our pre-pandemic work on the government’s court reform programme.
This page covers:
- what the changes mean for solicitors
- where remote hearings are working well and not so well
- our view, concerns and recommendations
- what we’ve been doing since the first pilot in 2018
Currently, judges decide whether a case is suitable to hold as a remote hearing based on the interests of justice.
In December 2021, HM Courts and Tribunals Service published an evaluation of remote hearings.
The evaluation reflects some of the concerns we’ve raised when responding to consultations on the changes.
During 2022, HMCTS will be transitioning to a new video hearings service, which includes:
- virtual consultation rooms
- built-in guidance for court users
Since March 2020, courts have rapidly moved online, speeding up existing plans to digitise the courts as part of HM Courts and Tribunals Service (HMCTS) reform programme.
For example, the Cloud Video Platform was rolled out in July 2020, and is now available for the following hearings:
So far, HMCTS has tried to avoid the need for specialist IT software or equipment. However, the increased use of technology may require some professionals to upgrade their IT and/or broadband service to make sure they work with the HMCTS system which can be costly for small/medium size law firms.
This may cause problems for some firms that have seen a (further) reduction in income due to the pandemic and may not be in a position to upgrade or buy new equipment.
Feedback from our members suggests that some cases can be dealt with perfectly well remotely, and this should remain a permanent feature of the justice system.
For example, remote hearings seem to be working well in:
- simple procedural hearings involving only judges and advocates, such as directions hearings or case management hearings
- cases involving more sophisticated parties and/or legal entities, such as in the English and Welsh commercial courts
- more technical or administrative proceedings
Remote hearings working less well
However, we’ve heard of more issues in cases which involve live evidence or significant controversy, such as:
- criminal, county and family courts
- complex cases, such as contested family hearings
Hearings involving vulnerable parties or witnesses are likely to be best served by an in-person hearing. Relevant factors may include, but are not limited to:
- mental health problems
- learning difficulties
- English as a second language
- experience of trauma
- socio-economic background considerations
- caring responsibilities
The use of remote hearings should be considered on a case-by-case basis.
They should only happen when the court is satisfied that justice can be served via a remote hearing, weighing the importance and urgency of the hearing against factors suggesting justice might be better served through a physical hearing.
As mentioned above, such factors include:
- the nature of the proceedings
- the type of parties to the case
- whether or not parties have legal representation
We’re concerned that some court users may struggle to take part, and that not everyone has the skills or means to get online. This might be due lack of equipment, limited internet access, poor digital skills or disability.
- Four out of five legal professionals have heard or attended cases where one or more parties were unrepresented, according to the Youth Justice Legal Centre (see Video enabled justice evaluation, section 9.3)
- Only 16% of solicitors indicated that vulnerable clients were able to take part in remote hearings effectively, in a survey for our Law under Lockdown report
- In 2018, there were 5.3 million adults in the UK, or 10% of the adult UK population who were not internet users, according to a study by the Office of National Statistics
From the outset of the court modernisation programme, we’ve been emphasising the importance of analysing fully the impact of remote hearings on access to justice and on justice outcomes.
This should include analysis of:
- different types of party
- their perception of whether justice was done
- their ability to understand and take part in proceedings
We believe it’s also critical to have:
- rigorous and comprehensive data collection
- consultation with both the legal profession and court users
Robust data collection will allow us to properly evaluate the impact of COVID, and make sure lessons are learned and applied to future reforms.
Consistent, well-functioning platforms, policies and procedures must also be in place that ensure all parties:
- have access to equipment, platforms and training
- can confidentially communicate with their legal representatives throughout a hearing
- understand what should happen when a technical problem occurs
Our remote hearings working group
We've set up a cross-committee working group as a collaborative forum to consult practitioners' views on the long-term use of remote hearings.
This includes (but is not limited to) understanding remote hearings' impact on:
- both professional and non-professional users
- justice outcomes
Ongoing – every three months, we're meeting as part of the government's strategic engagement group for video hearings, alongside the Bar Council and CILEX. The group reviews and gives feedback on the development and use of the video hearings service
January 2022 – our working group met to discuss the HMCTS evaluation on remote hearings during the pandemic
December 2021 – we look forward to constructive discussions on the future of remote hearings after HMCTS evaluation reflects our concerns
June 2021 – we responded to the rapid consultation to evaluate the role of remote hearings in the family justice system and in the Court of Protection by the Nuffield Family Justice Observatory
May 2021 – we gave evidence to the Parliamentary Committee scrutinising the Police, Crime, Sentencing and Courts Bill. We have evidence on the impact that remote hearings can have on vulnerable witnesses and the uncertain impact of remote juries on access to justice
April 2021 – we published guidance for member safety in court and tribunal buildings, including when not to attend court in person
April 2021 – HMCTS introduced the Video Hearings service in Birmingham Civil and Family Justice Centre, and we invited family solicitors to share their views on remote hearings
February 2021 – following our lobbying, HMCTS confirmed that a number of police stations and courts have reinstated remand hearings via Cloud Video Platform
September 2020 – we responded to a follow-up consultation on remote and hybrid hearings in the family court
September 2020 – we published Law under lockdown, a report on the impact of COVID-19 measures on access to justice and vulnerable people
July 2020 – we responded to a rapid consultation on remote hearings in the family courts by the National Family Justice Observatory
May 2020 – we wrote to the president of the Family Division, outlining our views on the need for national guidance on remote hearings
May 2019 – we made recommendations on the Courts and Tribunals Bill ahead of its second reading in the House of Lords
HMCTS remote hearing evaluation (December 2021)
Who’s responsible for the cost of setting up a remote hearing? (Family courts)
Availability of live links in magistrates’ courts under their criminal and civil jurisdiction (PDF 239 KB) (while the Coronavirus Act 2020 is in force)